Environmental Planning and Assessment Regulation 2000
Historical version for 12 February 2010 to 28 February 2010 (accessed 4 August 2020 at 12:18) Current version
Part 8
Part 8 Certification of development
Division 1 Compliance certificates
138   Compliance certificate
(cf clause 79 of EP&A Regulation 1994)
(1)  A compliance certificate must contain the following:
(a)  the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,
(b)  if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,
(b1)  if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,
(b2)  if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,
(c)  a description of the development being carried out,
(d)  the registered number and date of issue of any relevant development consent or complying development certificate,
(e)  the address, and formal particulars of title, of the land on which the development is being carried out,
(f)  the date of the certificate,
(g)  a description of any work that has been inspected, how the work has been inspected and the date and time when the work was inspected,
(h)  a statement as to the matters in respect of which the certificate is given.
Note.
 Section 109C of the Act identifies the various matters in respect of which a compliance certificate may be given.
(2)  A compliance certificate must be accompanied by any documents referred to in the certificate, being documents concerning matters in respect of which the certificate is given.
(3)  A copy of each compliance certificate relied on in issuing an occupation certificate must be forwarded to the consent authority and the council when a certifying authority notifies them of the issue of an occupation certificate.
Division 2 Construction certificates
139   Applications for construction certificates
(cf clause 79A of EP&A Regulation 1994)
(1)  An application for a construction certificate:
(a)  must contain the information, and be accompanied by the documents, specified in Part 3 of Schedule 1, and
(b)  if the certifying authority so requires, must be in the form approved by that authority, and
(c)  must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.
(1A)  The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development.
(2)  Immediately after it receives an application for a construction certificate, the certifying authority must endorse the application with the date of its receipt.
139A   Withdrawal of application for construction certificate
(1)  An application for a construction certificate may be withdrawn at any time prior to its determination by service on the certifying authority to which it was made of a notice to that effect signed by the applicant.
(2)  The certifying authority may (but is not required to) refund to the applicant the whole or any part of the application fee paid in connection with an application that has been withdrawn.
140   Certifying authority may require additional information
(cf clause 79B of EP&A Regulation 1994)
(1)  A certifying authority may require the applicant for a construction certificate to give the certifying authority any additional information concerning the proposed building or subdivision work that is essential to the certifying authority’s proper consideration of the application.
(2)  Nothing in this clause affects the certifying authority’s duty to determine an application for a construction certificate.
141   Certifying authority to supply application form for construction certificates
(cf clause 79C of EP&A Regulation 1994)
If a certifying authority requires an application for a construction certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
142   Procedure for determining application for construction certificate
(cf clause 79D of EP&A Regulation 1994)
(1)  The determination of an application for a construction certificate must be in writing and must contain the following information:
(a)  the date on which the application was determined,
(b)  whether the application has been determined:
(i)  by approval, or
(ii)  by refusal, and
(c)  if the application has been determined by refusal:
(i)  the reasons for the refusal, and
(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against the refusal,
(d)  if a construction certificate has been issued subject to conditions of the kind referred to in clause 187 or 188:
(i)  the reasons for the conditions, and
(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against any such conditions.
(2)  The certifying authority must cause notice of its determination to be given to the consent authority, and to the council, by forwarding to it, within 2 days after the date of the determination, copies of:
(a)  the determination, together with the application to which it relates, and
(b)  any construction certificate issued as a result of the determination, and
(c)  any plans and specifications in relation to which such a construction certificate has been issued, and
(d)  any fire safety schedule or fire link conversion schedule attached to such a construction certificate, and
(e)  any other documents that were lodged with the application for the certificate (such as any relevant decision on an objection under clause 187 or 188) or given to the certifying authority under clause 140, and
(f)  the record of any inspection made for the purposes of clause 143B in relation to the issue of the construction certificate.
Note.
 See also clause 168 which requires a fire safety schedule to be attached to a construction certificate when it is issued.
(2A)  A copy of a record of inspection referred to in subclause (2) (f) need not be given to a consent authority or council that carried out the inspection.
(3)  In this Part, a reference to the issuing of a construction certificate includes a reference to the endorsement of the construction certificate on any relevant plans and specifications, as referred to in section 109C (1) (b) of the Act.
143   Fire protection and structural capacity
(cf clause 79E of EP&A Regulation 1994)
(1)  A certifying authority must not issue a construction certificate for building work under a development consent that authorises a change of building use unless:
(a)  the fire protection and structural capacity of the building will be appropriate to its new use, and
(b)  the building will comply with such of the Category 1 fire safety provisions as are applicable to the new use,
assuming that the building work is carried out in accordance with the plans and specifications to which the construction certificate relates and any conditions to which the construction certificate is subject.
(2)  Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).
(3)  In the case of building work that involves the alteration, enlargement or extension of an existing building in circumstances in which no change of building use is proposed, a certifying authority must not issue a construction certificate for the work unless, on completion of the building work, the fire protection and structural capacity of the building will not be reduced, assuming that the building work is carried out in accordance with the plans and specifications to which the construction certificate relates and any conditions to which the construction certificate is subject.
(4)  This clause does not apply to building work required by a consent authority as a condition of a development consent that authorises a change of building use.
143A   Special requirements for construction certificates for residential flat development
(1)  This clause applies to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A).
(2)  A certifying authority must not issue a construction certificate for residential flat development unless the certifying authority has received a design verification from a qualified designer, being a statement in which the qualified designer verifies that the plans and specifications achieve or improve the design quality of the development for which development consent was granted, having regard to the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development.
(3)  If the development application referred to in subclause (1) was also required to be accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in subclause (2) need not be verified to the extent to which they aim:
(a)  to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or
(b)  to improve the thermal performance of the building.
143B   Restriction on issue of certain construction certificates without inspection
A certifying authority must not issue a construction certificate for development on a site which affects an existing building unless a council, a consent authority or an accredited certifier has carried out an inspection of the building.
143C   Record of site inspections
(1)  A council, consent authority or accredited certifier must make a record of each inspection carried out by the council, consent authority or accredited certifier for the purposes of clause 143B.
(2)  Any council, consent authority or accredited certifier who is required to make such a record but is not the certifying authority in relation to the issue of the construction certificate concerned must, within 2 days after the carrying out of the inspection, provide a copy of the record to the certifying authority.
(3)  The record must include the following:
(a)  the registered number of the relevant development application,
(b)  the address of the property at which the inspection was carried out,
(c)  the type of inspection,
(d)  the date on which the inspection was carried out,
(e)  if the inspection was carried out by a council, the name of the council and the identity and signature of the individual who carried out the inspection on behalf of the council,
(f)  if the inspection was carried out by an accredited certifier, the identity of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate,
(g)  if the inspection was carried out by an accredited certifier, the accreditation number of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate,
(h)  details of the current fire safety measures in the existing building the subject of the inspection,
(i)  details as to whether or not the plans and specifications accompanying the application for the construction certificate adequately and accurately depict the condition of the existing building the subject of the inspection,
(j)  details as to whether or not any building or subdivision work authorised by the relevant development consent has commenced on the site.
144   Referral of certain plans and specifications to New South Wales Fire Brigades
(cf clause 79F of EP&A Regulation 1994)
(1)  This clause applies to:
(a)  a class 9a building that is proposed to have a total floor area of 2,000 square metres or more, or
(b)  a building (other than a class 9a building) that is proposed to have:
(i)  a fire compartment with a total floor area of more than 2,000 square metres, or
(ii)  a total floor area of more than 6,000 square metres,
where:
(c)  the building is the subject of an application for erection, rebuilding, alteration, enlargement or extension, and
(d)  the plans and specifications for the erection, rebuilding, alteration, enlargement or extension provide for an alternative solution to meet the performance requirements contained in any one or more of the Category 2 fire safety provisions.
(2)  Within 7 days after receiving an application for a construction certificate for a building to which this clause applies, the certifying authority must forward to the Fire Commissioner:
(a)  a copy of the application, and
(b)  a copy of the plans and specifications for the building, and
(c)  details of the performance requirements that the alternative solution is intended to meet, and
(d)  details of the assessment methods to be used to establish compliance with those performance requirements,
which may be delivered by hand, forwarded by post or transmitted electronically, but may not be sent by facsimile transmission.
(3)  The Fire Commissioner must furnish the certifying authority with an initial fire safety report for the building.
(4)  An initial fire safety report may recommend conditions to be imposed on the erection, rebuilding, alteration, enlargement or extension of the building to which the report relates.
(5)  The certifying authority must not issue a construction certificate for a building to which this clause applies unless:
(a)  it has received an initial fire safety report for the building and has taken the report into consideration, or
(b)  at least 23 days have elapsed since the plans and specifications were forwarded to the Fire Commissioner but no such report has been received by the certifying authority.
(6)  If the certifying authority does not adopt any recommendation in an initial fire safety report:
(a)  because the report had not been received when the construction certificate was issued, or
(b)  because the certifying authority does not agree with the recommendation,
the certifying authority must cause written notice to be given to the Fire Commissioner of the fact that it has not adopted the recommendation and of the reasons why it has not adopted the recommendation.
(7)  If the certifying authority adopts any condition recommended by an initial fire safety report:
(a)  it must ensure that the terms of the recommended condition have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or
(b)  it must attach to the construction certificate a condition in the same terms as those of the recommended condition, in the case of a condition whose terms are not capable of being so included.
(8)  Compliance with the requirement that the terms of a recommended condition be included in the plans and specifications for building work is sufficiently complied with:
(a)  if the plans and specifications are redrawn so as to accord with those terms, or
(b)  if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.
(9)  In this clause:
initial fire safety report means a written report specifying whether or not the Fire Commissioner is satisfied, on the basis of the documents referred to in subclause (2):
(a)  that the alternative solution will meet such of the performance requirements as it is intended to meet, and
(b)  that the fire hydrants in the proposed fire hydrant system will be accessible for use by New South Wales Fire Brigades, and
(c)  that the couplings in the system will be compatible with those of the fire appliances and equipment used by New South Wales Fire Brigades.
144A   Compliance certificate required for certain fire safety aspects of building work
(1)  A certifying authority must not issue a construction certificate for building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement unless the certifying authority has obtained or been provided with either or both of the following issued by a fire safety engineer:
(a)  a compliance certificate referred to in section 109C (1) (a) (v) of the Act that certifies that the alternative solution complies with the relevant performance requirements of the Building Code of Australia,
(b)  a written report that includes a statement that the alternative solution complies with the relevant performance requirements of the Building Code of Australia.
(2)  Until 28 February 2010, this clause applies only to building work in respect of:
(a)  a class 9a building, as defined in the Building Code of Australia, that is proposed to have a total floor area of 2,000 square metres or more, and
(b)  any building (other than a class 9a building) that is proposed to have:
(i)  a fire compartment, as defined in the Building Code of Australia, with a total floor area of more than 2,000 square metres, or
(ii)  a total floor area of more than 6,000 square metres,
that involves an alternative solution under the Building Code of Australia in respect of the requirements set out in EP1.4, EP2.1, EP2.2, DP4 and DP5 in Volume 1 of that Code.
(3)  From 1 March 2010, this clause applies to all building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement.
(4)  A fire safety engineer may issue a written report under subclause (1) (b) in respect of an alternative solution prepared by the engineer.
145   Compliance with development consent and Building Code of Australia
(cf clause 79G of EP&A Regulation 1994)
(1)  A certifying authority must not issue a construction certificate for building work unless:
(a1)  the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and
(a)  the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent, and
(b)  the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).
(2)  A certifying authority must not issue a construction certificate for subdivision work unless the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent.
(3)  Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).
146   Compliance with conditions of development consent
(cf clause 79H of EP&A Regulation 1994)
A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless each of the following have been complied with:
(a)  each condition or agreement requiring the provision of security before work is carried out in accordance with the consent (as referred to in section 80A (6) of the Act),
(b)  each condition requiring the payment of a monetary contribution or levy before work is carried out in accordance with the consent (as referred to in section 94 or 94A of the Act),
(c)  each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.
147   Form of construction certificate
(cf clause 79I of EP&A Regulation 1994)
(1)  A construction certificate must contain the following:
(a)  the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,
(b)  if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,
(b1)  if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,
(b2)  if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,
(c)  the registered number and date of issue of any relevant development consent,
(d)  the date of the certificate,
(e)  a statement to the effect that work completed in accordance with documentation accompanying the application for the certificate (with such modifications verified by the certifying authority as may be shown on that documentation) will comply with the requirements of this Regulation as are referred to in section 81A (5) of the Act,
(f)  the classification (in accordance with the Building Code of Australia) of the building to which the certificate relates.
(1A)  A construction certificate may indicate different classifications for different parts of the same building.
(2)  A construction certificate for a building must be accompanied by a fire safety schedule for the building.
(3)  Subclause (2) does not apply to:
(a)  a class 1a or class 10 building within the meaning of clause 167, or
(b)  a construction certificate that relates only to fire link conversion.
Note.
 The documents that must be issued with and accompany a construction certificate that relates only to fire link conversion are set out in clause 168A.
148   Modification of construction certificate
(cf clause 79IA of EP&A Regulation 1994)
(1)  A person who has made an application for a construction certificate and a person having the benefit of a construction certificate may apply to modify the development the subject of the application or certificate.
(2)  This Division applies to an application to modify development in the same way as it applies to the original application.
(3)  As soon as practicable after granting an application to modify development in respect of which an application for a construction certificate has previously been referred to the Fire Commissioner under clause 144, but for which (in its modified form) an application for a construction certificate for a building would no longer be required to be so referred, a certifying authority must notify the Fire Commissioner that the building to which the construction certificate relates is no longer a building to which clause 144 applies.
Division 3 Occupation certificates
149   Applications for occupation certificates
(cf clause 79J of EP&A Regulation 1994)
(1)  An application for an occupation certificate must contain the following information:
(a)  the name and address of the applicant,
(b)  a description of the building to which the application relates, including the existing and new classifications of the building under the Building Code of Australia, as identified by the development consent,
(c)  the address, and formal particulars of title, of the land on which the building to which the application relates is situated,
(d)  the type of occupation certificate applied for (that is, interim or final),
(e)  a list of the documents accompanying the application,
and, if the certifying authority so requires, must be in the form approved by that authority.
(2)  The application must be accompanied by the following documents:
(a)  a copy of the relevant development consent or complying development certificate,
(b)  a copy of any relevant construction certificate,
(c)  a copy of any relevant fire safety certificate,
(d)  a copy of any relevant compliance certificate.
(2A)  In the case of an application with respect to development the subject of a condition requiring commitments listed in a BASIX certificate or in BASIX certificates to be fulfilled, the application must also be accompanied by a copy of each relevant BASIX certificate for the development.
(2B)  The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development.
(3)  The application must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.
(4)  Immediately after it receives an application for an occupation certificate, the certifying authority must endorse the application with the date of its receipt.
150   Certifying authorities to supply application form for occupation certificates
(cf clause 79K of EP&A Regulation 1994)
If a certifying authority requires an application for an occupation certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
151   Procedure for determining application for occupation certificate
(cf clause 79L of EP&A Regulation 1994)
(1)  The determination of an application for an occupation certificate must be in writing and must contain the following information:
(a)  the date on which the application was determined, and
(b)  whether the application has been determined:
(i)  by approval, or
(ii)  by refusal, and
(c)  if the application has been determined by refusal:
(i)  the reasons for the refusal, and
(ii)  if the certifying authority is a consent authority and the application relates to a final occupation certificate, of the applicant’s right of appeal under the Act against the refusal.
(2)  The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination:
(a)  a copy of the determination,
(b)  copies of any documents that were lodged with the application for the certificate,
(c)  if an occupation certificate was issued, a copy of the certificate,
(d)  a copy of the record required to be made of each of the following:
(i)  all critical stage inspections and any other inspections carried out because they were required by the principal certifying authority under section 109E (3) (d) of the Act,
(ii)  any inspection carried out under clause 162A (4A) (a),
(iii)  any missed inspection to which clause 162C applies,
(e)  a copy of any compliance certificate and of any other documentary evidence, whether or not of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia, relied on in issuing the occupation certificate.
152   Reports of Fire Commissioner: section 109H
(cf clause 79M of EP&A Regulation 1994)
(1)  This clause applies to a building to which clause 144 applies.
(2)  Unless it has already refused such an application, a certifying authority must request the Fire Commissioner to furnish it with a final fire safety report for a building as soon as practicable after receiving an application for an occupation certificate for the building.
(3)  If it refuses the application after making such a request but before receiving a final fire safety report, the certifying authority must cause notice of the refusal to be given to the Fire Commissioner.
(4)  Unless it has received a notice referred to in subclause (3), the Fire Commissioner must furnish the certifying authority with a final fire safety report for the building within 7 days after receiving a request for the report.
(5)  The certifying authority must not issue an occupation certificate for the building unless it has taken into consideration any final fire safety report for the building that has been furnished to it within the 7-day period.
(6)  In this clause:
final fire safety report for a building means a written report specifying whether or not the Fire Commissioner is satisfied:
(a)  that the building complies with the Category 2 fire safety provisions, and
(b)  that the fire hydrants in the fire hydrant system will be accessible for use by New South Wales Fire Brigades, and
(c)  that the couplings in the fire hydrant system will be compatible with those of the fire appliances and equipment used by New South Wales Fire Brigades.
153   Fire safety certificates: section 109H
(cf clause 79N of EP&A Regulation 1994)
(1)  For the purposes of section 109H (5) (d) and (6) (c) of the Act, a final occupation certificate authorising a person:
(a)  to commence occupation or use of a new building, or
(b)  to commence a change of use for an existing building,
must not be issued unless a final fire safety certificate has been issued for the building.
(1A)  If the need for the final occupation certificate arises solely from fire link conversion, the final fire safety certificate referred to in subclause (1) need only deal with the new fire alarm communication link.
(2)  For the purposes of section 109H (3) (d) and (4) (c) of the Act, an interim occupation certificate authorising a person:
(a)  to commence occupation or use of a partially completed new building, or
(b)  to commence a change of use for part of an existing building,
must not be issued unless a final fire safety certificate or an interim fire safety certificate has been issued for the relevant part of the building.
(3)  This clause does not apply to a class 1a or class 10 building within the meaning of clause 167 or to a temporary structure.
(4)  In this clause:
interim fire safety certificate has the same meaning as it has in Part 9.
final fire safety certificate has the same meaning as it has in Part 9.
new building has the same meaning as it has in section 109H of the Act.
153A   Compliance certificate required for certain fire safety aspects of building work
(1)  A certifying authority must not issue an occupation certificate for a building in respect of which a compliance certificate or report is required under clause 130 (2A) or 144A (1) (the first certificate or report) unless the certifying authority has obtained or been provided with either or both of the following issued by a fire safety engineer:
(a)  a compliance certificate referred to in section 109C (1) (a) (i) of the Act that certifies that the building work relating to the alternative solution that was the subject of the first certificate or report has been completed and complies with that alternative solution,
(b)  a written report that includes a statement that the building work relating to the alternative solution that was the subject of the first certificate or report has been completed and is consistent with that alternative solution.
(2)  A fire safety engineer may issue a written report under subclause (1) (b), even if the engineer also issued a report under clause 130 (2A) (b) or 144A (1) (b) in respect of the work.
154   Health, safety and other issues: section 109H
(cf clause 79O of EP&A Regulation 1994)
(1)  For the purposes of section 109H (3) (d) and (4) (c) of the Act, an interim occupation certificate authorising a person:
(a)  to commence occupation or use of a partially completed new building, or
(b)  to commence a change of building for use for part of an existing building,
must not be issued unless the building will not constitute a hazard to the health or safety of the occupants of the building.
(1A)  For the purposes of section 109H (5) (d) of the Act, a final occupation certificate authorising a person to commence occupation or use of a temporary structure as an entertainment venue must not be issued unless:
(a)  the certifying authority has inspected the temporary structure, and
(b)  the temporary structure is suitable for its proposed use as an entertainment venue, including for the number of persons proposed to occupy or use the temporary structure.
(2)  In this clause:
new building has the same meaning as it has in section 109H of the Act.
154A   Special requirements for occupation certificates for residential flat development
(1)  This clause applies to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A).
(2)  A certifying authority must not issue an occupation certificate to authorise a person to commence occupation or use of residential flat development unless the certifying authority has received a design verification from a qualified designer, being a statement in which the qualified designer verifies that the residential flat development achieves the design quality of the development as shown in the plans and specifications in respect of which the construction certificate was issued, having regard to the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development.
(3)  If the development application referred to in subclause (1) was also required to be accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in subclause (2) need not be verified to the extent to which they aim:
(a)  to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or
(b)  to improve the thermal performance of the building.
154B   Fulfilment of BASIX commitments
(1)  This clause applies to BASIX affected development in respect of which, and BASIX optional development in respect of which, a relevant BASIX certificate requires a certifying authority to monitor fulfilment of any of the commitments listed in the certificate.
(2)  A certifying authority must not issue an occupation certificate (whether interim or final) for any building resulting from, or any building that becomes a BASIX affected building because of, BASIX affected development or BASIX optional development to which this clause applies, or for any part of such a building, unless each of the commitments whose fulfilment it is required to monitor in relation to the building or part has been fulfilled.
(3)  For the purpose of satisfying itself as to the fulfilment of any such commitment, a certifying authority may rely on the advice of any properly qualified person.
154C   BASIX completion receipt
(1A)  This clause applies:
(a)  from 1 October 2006 until 30 June 2007 (inclusive) to:
(i)  the erection of a BASIX affected building that is BASIX affected development, or
(ii)  a change of building use by which a building becomes a BASIX affected building, and
(b)  on and from 1 July 2007, to BASIX affected development in respect of which a relevant BASIX certificate or relevant BASIX certificates requires a certifying authority to monitor fulfilment of any of the commitments listed in the certificate.
(1)  Within 2 days after issuing a final occupation certificate for a building the subject of development to which this clause applies, or for part of such a building, the certifying authority must apply to the Director-General for a BASIX completion receipt with respect to that building or part.
(2)  An application for a BASIX completion receipt must be made in the manner notified in writing to certifying authorities by the Director-General and must contain the following information:
(a)  the number of each relevant BASIX certificate for the building or part of a building,
(b)  the postcode of the address of the building,
(c)  the date of issue of the final occupation certificate,
(d)  such other information (if any) as the Director-General may determine and is notified in writing to certifying authorities.
(3)  The Director-General may issue a BASIX completion receipt:
(a)  by means of a computerised system, as approved from time to time by the Director-General, being a system to which certifying authorities are given on-line access, whether over the internet or otherwise, or
(b)  by such other means as the Director-General may approve from time to time.
(4)  A BASIX completion receipt is to confirm that the information required to be provided by a certifying authority under this clause has been provided.
(5)  A BASIX completion receipt is to be in such form, and contain such other information, as the Director-General may approve from time to time.
155   Form of occupation certificate
(cf clause 79P of EP&A Regulation 1994)
(1)  An occupation certificate must contain the following:
(a)  the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,
(b)  if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,
(b1)  if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,
(b2)  if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,
(c)  the date of the certificate,
(d)  indicate the type of certificate being issued (that is, interim or final),
(e)  a statement to the effect that:
(i)  the health and safety of the occupants of the building have been taken into consideration where an interim occupation certificate is being issued, and
(ii)  a current development consent or complying development certificate is in force for the building, and
(iii)  if any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and
(iv)  the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and
(v)  a fire safety certificate has been issued for the building, and
(vi)  a report from the Fire Commissioner has been considered (if required).
(2)  Except as provided by subclause (3) or (4), the certificate must be accompanied by a fire safety certificate and fire safety schedule for the building.
(3)  If the need for the occupation certificate arises solely from fire link conversion, the certificate need only be accompanied by a fire safety certificate of the kind referred to in section 153 (1A) and the relevant fire link conversion schedule or fire safety schedule issued under clause 168A.
(4)  If the building is a temporary structure, subclauses (1) (e) (v) and (2) do not apply.
Note.
 The only circumstance in which the occupation or use of a temporary structure requires an occupation certificate is when the temporary structure is to be used as an entertainment venue.
156   Occupation and use of new buildings: section 109M (2)
(cf clause 79Q of EP&A Regulation 1994)
(1)  For the purposes of section 109M (2) (c) of the Act, the following are prescribed circumstances:
(a)  the fact that a building is a class 1a or class 10 building for which a construction certificate or complying development certificate was issued before 1 March 2004 (being the date on which Schedule 2.1 [32] to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003 commenced),
(b)  the fact that the building is a temporary structure (other than a temporary structure that is an entertainment venue).
(2)  A person who is prescribed for the purposes of section 88 (2) (a) of the Act in relation to Crown building work involving the erection of a new building is prescribed for the purposes of section 109M (2) (d) of the Act in relation to that building.
Note.
 Section 109M of the Act prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.
Section 109M (2) (c) provides for the disapplication of that section in circumstances prescribed by the regulations. Subclause (1) of this clause prescribes such circumstances.
Section 109M (2) (d) provides for the disapplication of that section in the case of buildings erected by or on behalf of the Crown or by or on behalf of prescribed persons. Subclause (2) of this clause prescribes such persons.
Division 4 Subdivision certificates
157   Applications for subdivision certificates
(cf clause 79R of EP&A Regulation 1994)
(1)  An application for a subdivision certificate must contain the following information:
(a)  the name and address of the applicant,
(b)  the address, and formal particulars of title, of the land to which the application relates,
(c)  if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the making of the application,
(d)  a list of the documents accompanying the application,
and, if the certifying authority so requires, must be in the form approved by that authority.
(2)  The application must be accompanied by the following documents:
(a)  a plan of subdivision,
(b)  a copy of the relevant development consent or complying development certificate,
(c)  a copy of any relevant construction certificate,
(d)  a copy of detailed subdivision engineering plans,
(e)  for a deferred commencement consent, evidence that the applicant has satisfied the consent authority on all matters of which the consent authority must be satisfied before the consent can operate,
(f)  evidence that the applicant has complied with all conditions of consent that it is required to comply with before a subdivision certificate can be issued, where relevant,
(g)  a certificate of compliance from the relevant water supply authority, where relevant,
(h)  if a subdivision is the subject of an order of the Land and Environment Court under section 40 of the Land and Environment Court Act 1979, evidence that required drainage easements have been acquired by the relevant council,
(i)  for subdivision involving subdivision work, evidence that:
(i)  the work has been completed, or
(ii)  agreement has been reached with the relevant consent authority as to payment of the cost of the work and as to the time for carrying out the work, or
(iii)  agreement has been reached with the relevant consent authority as to security to be given to the consent authority with respect to the completion of the work.
Note.
 See section 109O of the Act and clause 161 which provide that a requirement for a consent authority to be satisfied as to certain matters may be met if a certifying authority is satisfied as to those matters.
(2A)  The application may only be made:
(a)  by the owner of the land to which the application relates, or
(b)  by any other person, with the consent in writing of the owner of that land.
(3)  The application must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.
(4)  The plan of subdivision to which the application relates must be accompanied by a certificate on the plan in the relevant form required by the regulations in force under the Surveying and Spatial Information Act 2002.
(5)  Immediately after it receives an application for a subdivision certificate, the certifying authority must endorse the application with the date of its receipt.
158   Certifying authority may require additional information
(cf clause 79S of EP&A Regulation 1994)
(1)  A certifying authority may require the applicant for a subdivision certificate to give the certifying authority any additional information concerning the proposed subdivision that is essential to the certifying authority’s proper consideration of the application.
(2)  Nothing in this clause affects the certifying authority’s duty to determine an application for a subdivision certificate.
159   Certifying authorities to supply application form for subdivision certificates
(cf clause 79T of EP&A Regulation 1994)
If a certifying authority requires an application for a subdivision certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
160   Procedure for determining application for subdivision certificate
(cf clause 79U of EP&A Regulation 1994)
(1)  The determination of an application for a subdivision certificate must be in writing and must contain the following information:
(a)  the date on which the application was determined,
(b)  whether the application has been determined:
(i)  by approval, or
(ii)  by refusal,
(c)  if the application has been determined by refusal:
(i)  the reasons for the refusal, and
(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against the refusal,
(d)  the identity of the certifying authority determining the application, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who dealt with the application on behalf of the body corporate,
(e)  if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who dealt with the application on behalf of the body corporate,
(f)  if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,
(g)  if an individual dealt with the application on behalf of the certifying authority, the signature of the individual who dealt with the application.
(2)  The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination:
(a)  a copy of the determination,
(b)  copies of any documents that were lodged with the application for the certificate,
(c)  if a subdivision certificate was issued, a copy of the endorsed plan of subdivision.
Note.
 The form of the subdivision certificate is regulated under the Conveyancing Act 1919.
160A   Prescribed persons: subdivision certificates
The following persons are prescribed for the purposes of section 109D (1) (d) (iii) of the Act:
(a)  Newcastle Port Corporation,
(b)  Port Kembla Port Corporation,
(c)  Sydney Ports Corporation,
(d)  Rail Corporation New South Wales,
(e)  Transport Infrastructure Development Corporation.
Division 5 General
161   Certifying authorities may be satisfied as to certain matters: section 109O
(cf clause 79V of EP&A Regulation 1994)
(1)  This clause applies to the following matters:
(a)  any matter that relates to the form or content of the plans and specifications for the following kind of work to be carried out in connection with the erection of a building or the subdivision of land:
(i)  earthwork,
(ii)  road work, including road pavement and road finishing,
(iii)  stormwater drainage work,
(iv)  landscaping work,
(v)  erosion and sedimentation control work,
(vi)  excavation work,
(vii)  mechanical work,
(viii)  structural work,
(ix)  hydraulic work,
(x)  work associated with driveways and parking bays, including road pavement and road finishing,
(b)  any matter that relates to the external finish of a building.
(2)  Any requirement of the conditions of a development consent that a consent authority or council is to be satisfied as to a matter to which this clause applies is taken to have been complied with if a certifying authority is satisfied as to that matter.
162   Notice of replacement of principal certifying authority
(1)  A principal certifying authority appointed to replace another principal certifying authority must ensure that notice of the appointment and of the approval of that appointment is given to the consent authority (and, if the consent authority is not the council, to the council) within 2 days after the appointment.
(2)  Nothing in this clause requires any notice to be given to a person who has agreed to, or been notified of, the proposed appointment under section 109EA of the Act.
(3)  Clause 103 applies to a notice given for the purposes of this clause in the same way as it applies to a notice given under or for the purposes of section 81A (2) (b1) (i) or (4) (b1) (i) of the Act.
(4)  In addition to the information required by subclause (3) to be included in a notice under this clause, the following information is to be included:
(a)  the name of the former principal certifying authority who has been replaced,
(b)  a statement that the former principal certifying authority agreed to be replaced.
162A   Critical stage inspections required by section 109E (3) (d)
(1)  For the purposes of section 109E (3) (d) of the Act, the occasions on which building work must be inspected are as set out in this clause.
Note.
 These inspections are the critical stage inspections.
(2)  Except as provided by subclause (3), the critical stage inspections may be carried out by the principal certifying authority or, if the principal certifying authority agrees, by another certifying authority.
(3)  The last critical stage inspection required to be carried out for the class of building concerned must be carried out by the principal certifying authority.
(4)  In the case of a class 1 or 10 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are:
(a)    (Repealed)
(b)  after excavation for, and prior to the placement of, any footings, and
(c)  prior to pouring any in-situ reinforced concrete building element, and
(d)  prior to covering of the framework for any floor, wall, roof or other building element, and
(e)  prior to covering waterproofing in any wet areas, and
(f)  prior to covering any stormwater drainage connections, and
(g)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
(4A)  However, in the case of a class 1 or 10 building, an inspection on an occasion described in subclause (4) (a)–(f) that occurs before 1 July 2005 is not prescribed for the purposes of section 109E (3) (d) of the Act if:
(a)  the inspection is carried out by a person considered by the principal certifying authority to be suitably qualified to carry out the inspection (but who is not necessarily an accredited certifier) and employed, or nominated for the purpose of carrying out the inspection, by the principal certifying authority, and
(b)  the person would not be disqualified by section 109ZG of the Act (except by subsection (1) (d) or (1A) of that section) from issuing a Part 4A certificate in relation to any aspect of the development concerned.
(c)  the person makes a record of each inspection carried out by him or her, and provides a copy of that record to the principal certifying authority, as required by clause 162B for a critical stage inspection or any other inspection required by the principal certifying authority.
(5)  In the case of a class 2, 3 or 4 building, the occasions on which building work must be inspected are:
(a)    (Repealed)
(b)  prior to covering of waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within a building, and
(c)  prior to covering any stormwater drainage connections, and
(d)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
(6)  In the case of a class 5, 6, 7, 8 or 9 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are:
(a)    (Repealed)
(b)  prior to covering any stormwater drainage connections, and
(c)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
(7)    (Repealed)
(7A)  Inspections of building work must be made on the following occasions in addition to those required by the other provisions of this clause for the building work:
(a)  in the case of a swimming pool, after the construction of the swimming pool is completed and the barrier (if one is required under the Swimming Pools Act 1992) has been erected and before the pool is filled with water,
(b)  in the case of a class 2, 3, 4, 5, 6, 7, 8 or 9 building, after excavation for, and before the placement of, any footings.
(8)  This clause does not prescribe any occasion on which a manufactured home or dwelling built off the site in sections and transported to the site for assembly is required to be inspected.
162B   Record of inspections conducted under section 109E (3)
(1)  A principal certifying authority and each other certifying authority must make a record of each critical stage inspection and any other inspection carried out because it was required by the principal certifying authority under section 109E (3) (d) of the Act carried out by the principal certifying authority or other certifying authority.
(2)  Any certifying authority who is required to make such a record but is not the principal certifying authority for the work concerned must, within 2 days after the record is made, provide a copy of the record to the principal certifying authority for the work.
Note.
 Copies of these records must be kept for at least 15 years (see clause 205).
(3)  Each record of an inspection required by this clause must be made as soon as practicable after the inspection is carried out.
(4)  The record must include details of:
(a)  the registered number of the development application and of the construction certificate or complying development certificate, and
(b)  the address of the property at which the inspection was carried out, and
(c)  the type of inspection, and
(d)  the date on which it was carried out, and
(e)  the identity of the certifying authority by whom the inspection was carried out, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate, and
(e1)  if the certifying authority by whom the inspection was carried out is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate, and
(f)  whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.
162C   Progress inspection unavoidably missed
(1)  If the circumstances described in subclause (2) apply:
(a)  an inspection, other than a final inspection, that would be prescribed for the purposes of section 109E (3) (d) of the Act in the absence of this clause, is not prescribed for the purposes of that paragraph, and
(b)  an inspection that is not prescribed for the purposes of that paragraph, but is required to be carried out by the principal certifying authority under that paragraph, need not be carried out.
(2)  The circumstances are:
(a)  the inspection was missed because of circumstances that the principal certifying authority considers were unavoidable, and
(b)  the principal certifying authority is satisfied that the work that would have been the subject of the missed inspection was satisfactory, and
(c)  the principal certifying authority, as soon as practicable after becoming aware of the circumstances that caused the inspection to be missed, makes a record in accordance with subclause (3).
(3)  The record of a missed inspection must include the following:
(a)  a description of the development to which the record relates and of the class of the building concerned,
(b)  the address and land title particulars (such as the Lot and DP numbers) of the property concerned,
(c)  the registered number of the development consent and the construction certificate or of the complying development certificate,
(d)  the name and accreditation number of the principal certifying authority,
(e)  the name, address and telephone number of the principal contractor or owner builder and, if that person is required to be the holder of a licence or permit, the number of that licence or permit,
(f)  particulars of the inspection that was missed and of the circumstances that the principal certifying authority considers were unavoidable that caused it to be missed,
(g)  a statement that the principal certifying authority is satisfied that the work that would have been the subject of the missed inspection was satisfactory,
(h)  the documentary evidence that was relied on to satisfy the principal certifying authority that the work that would have been the subject of the missed inspection was satisfactory, including (but not limited to) documentary evidence of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia.
(4)  Within 2 days after a person who is not the principal certifying authority becomes aware that an inspection described in subclause (1) that was required to be carried out by him or her has been missed, he or she must inform the principal certifying authority of that fact and of the circumstances causing the inspection to be missed.
(5)  Within 2 days after becoming aware that an inspection, other than a final inspection, has been missed, the principal certifying authority:
(a)  must notify that fact to the person who appointed the principal certifying authority and in the case of work for which a principal contractor is required to be appointed, the principal contractor or, in the case of work being done by an owner builder, the owner builder, and
(b)  must send a copy of the record made under this clause to the person who appointed the principal certifying authority.
(6)  In this clause, final inspection means an inspection described in clause 162A (4) (g), (5) (d) or (6) (c).
163   Notice to allow inspections
To allow a principal certifying authority or another certifying authority time to carry out critical stage inspections or any other inspections required by the principal certifying authority, the principal contractor for a building site, or the owner-builder, must notify the principal certifying authority at least 48 hours before each required inspection needs to be carried out.
164   No need for duplicate notices
(cf clause 79Y of EP&A Regulation 1994)
Nothing in this Part requires a certifying authority to give a copy of a document to itself just because it is also a consent authority or council or to give more than one copy of a document to any other person just because that other person is both a consent authority and a council.
164A   BASIX certificates
(1)  The Director-General may issue certificates (BASIX certificates) in relation to the sustainability of any proposed BASIX affected development and any proposed BASIX optional development.
(2)  Without limiting subclause (1), a BASIX certificate may be issued by means of a computerised system, as approved from time to time by the Director-General, being a system to which members of the public are given on-line access, whether over the internet or otherwise.
(3)  The relevant application need only be accompanied by one BASIX certificate.
(3A)  Subclause (3) does not apply to development that involves the alteration, enlargement or extension of a BASIX affected building that contains more than one dwelling.
Note.
 See Schedule 1, clauses 2A, 4A and 6A which require separate certificates for each dwelling.
(4)  A BASIX certificate must contain the following:
(a)  a description of the proposed development, corresponding in all relevant respects with the description contained in:
(i)  the relevant application, and
(ii)  any relevant accompanying documents,
(b)  a detailed list of the commitments that the applicant has made as to the manner in which the development will be carried out (being commitments as to the measures, such as design and fit-out, that the applicant proposes to implement in order to promote the sustainability of the development),
(c)  a statement to the effect that the proposed development will meet the Government’s requirements for sustainability if the applicant’s commitments are fulfilled.
(4A)  In the case of a development that involves the erection of a building for both residential and non-residential purposes, or the change of use of a building to both residential and non-residential purposes, the description referred to in subclause (4) (a) need only include information concerning the part of the development that is intended to be used for residential purposes.
(5)  In this clause:
accompanying document means any document required to accompany an application pursuant to clause 2, 4 or 6 of Schedule 1.
application means:
(a)  a development application, application for a complying development certificate or application for a construction certificate, or
(b)  an application for modification of a development consent, complying development certificate or construction certificate.
sustainability, in relation to proposed development, means the capacity of the development:
(a)  to reduce consumption of mains-supplied potable water, and
(b)  to reduce emissions of greenhouse gases, and
(c)  to perform in a thermally efficient manner.